July 23, 1998
Section: Local News
Edition: Schenectady Albany; Final
Page: B-01

Slain man's family plans to sue city


Gazette Reporter

WATERVLIET - The family of a man killed by a Watervliet police officer filed notice Wednesday that they will sue the city because police should have known the man was only pointing a pellet gun at them. Brian Myers, 36, died last Thursday just down the street from his 211 Seventh Ave. home after Watervliet Police Officer Joseph Torre shot him once in the chest with a 12-gauge shotgun. Now questions have arisen over whether the shooting was justified. Police officials have said that Torre was right to use deadly force because Myers was pointing a gun at police, and refused repeated orders to put it down. But Randall E. Kehoe, a lawyer for the Myers family, said Wednesday that several witnesses told police officers at the scene and a police dispatcher that it was "only a BB gun" - a message that went out across police radios. "We think didn't take enough time to find out what was going on," said Kehoe, who filed a notice of claim with the city. "If the cop just waited one minute, we believe Brian Myers would be alive today." He also said that Torre made "an error in judgment," because he used a shotgun, instead of his pistol, which would have required more time to retrieve and fire because it was in his holster. However, Watervliet Police Chief Francis Landrigan said he is sticking to his contention that Torre, who arrived at the scene as backup, was justified in shooting Myers because police did not know what kind of weapon he had. A transcript of emergency phone calls to police the night of the shooting will be submitted to the Albany County District Attorney's office for review, he said. The case may go before a grand jury to determine if there are grounds for charges against police. "When the DA is ready to submit it to the grand jury . . . anything he wants will go to the grand jury," Landrigan said. He declined to speak further about the shooting. Immediately after the incident occurred, however, police were explor- See MYERS, Page B3 Myers' family believes shooting was unjustified Continued from Page B1 ing the possibility that it was a case of "suicide by cop," meaning that Myers wielded the gun in order to goad police into shooting him. "He was told many, many times to drop the weapon," Landrigan said the day after the incident. "He seems to have done everything he could to get shot." Kehoe is representing Myers' mother, Rita Myers of Delmar, and the two sons he left behind: Joshua, 11, and Brian Jr., 14. The three-page notice of claim alleges negligence on the part of the police department and Torre, and is a precursor to a lawsuit against the city. Paul Murphy, the city's general manager, could not be reached for comment Wednesday. On the night of the shooting, Myers was moving out of the apartment he shared with his girlfriend, Cheryl Mousseau, and the gun - a "family heirloom" from his father - was among the belongings he took outside, Kehoe said. "He was asked to take his belongings out - it was not the case that he grabbed the gun to scare the police," he said. A witness, Charles Straughter, Mousseau's downstairs neighbor, said he was the one who called police, because Myers refused to leave the porch. Myers was moving out of his side of the house at his girlfriend's request. "When police came, I said it was a BB gun, and please don't shoot him," said Straughter, 43, who used to bowl with Myers. Straughter said his girlfriend, Wendy, and Mousseau were also on the porch, yelling the same thing to police. He also called the dispatcher for a second time, and again stressed that the weapon was a BB gun. Straughter said he did not know what, if anything Myers said to police when they ordered him to put the gun down. Nor could he guess why Myers would have refused police orders. "I don't know what was going on with him," Straughter said. Other witnesses who were listening to the police radio heard a police officer say to the dispatcher: "How do you know it's just a BB gun?" Kehoe said. The dispatcher responded that a caller informed her that it was. The BB gun was old, and resembled an automatic, police have said. Rita Myers said her son has been miscast as someone who was suicidal and provoked police. "My son was a very good person, and a good father, and that didn't come out in the media," Myers said. She said that the night he died, witnesses were telling police that he did not have a real gun. "It was just a mistake," she said.

Copyright 2005, 2006 The Daily Gazette Co. All Rights Reserved.

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